Author's recent book, CASS R. SUNSTEIN, THE SECOND BILL OF RIGHTS: FDR'S UNFINISHED REVOLUTION AND WHY WE NEED IT MORE THAN EVER (2004)
ROOSEVELT'S SECOND BILL OF RIGHTS: A DIALOGUE Cass R. Sunstein* & Randy E. Barnett** TABLE OF CONTENTS I. II. III. Sunstein: Roosevelt's Second Bill of Rights ................................. 205 Sunstein: Constitutive Commitments ............................................ 217 Barnett: Taking "Constitutive Commitments" Seriously ........... 218 IV. Sunstein: Taking FDR Seriously .................................................... 221 V. Barnett: Why Do "Constitutive Commitments" Matter? ........... 222 VI. Sunstein: FDR's Incomplete Success ............................................. 223 VII. Barnett: Constitutive Commitments Do Not Matter, But If They Do ......................................................................................... 224 1. ROOSEVELT'S SECOND BILL OF RIGHTS! Cass R. Sunstein On January 11, 1944, the United States was involved in its longest conflict since the Civil War. The war effort was going well. In a remarkably short period, the tide had turned sharply in favor of the Allies . • Karl N. Llewellyn Distinguished
Service Professor of Jurisprudence, Law School and Department of Political Science, University of Chicago; A.B., Harvard University, 1975; J.D., Harvard Law School, 1978. Law Clerk, Justice Thurgood Marshall, U.S. Supreme Court, 1979-80 . •• Austin B. Fletcher Professor of Law, Boston University School of Law; B.A., Northwestern University, 1974; J.D., Harvard Law School, 1977. 1. Portions of the analysis in this section have been adapted from the Author's recent book, CASS R. SUNSTEIN, THE SECOND BILL OF RIGHTS: FDR'S
UNFINISHED REVOLUTION AND WHY WE NEED IT
MORE THAN EVER (2004)
Ultimate victory was no longer in serious doubt. The real question was the nature of the peace. At noon, America's optimistic, aging, self-assured, wheelchair-bound president, Franklin Delano Roosevelt, delivered his State of the Union Address to Congress.2 His speech was not elegant. It was messy, sprawling, unruly, a bit of a pastiche, and not at all literary. It was the opposite of Lincoln's tight, poetic Gettysburg Address. But because of what it said, this forgotten address, proposing a "Second Bill of Rights," has a strong claim to being the greatest speech of the twentieth century.3 Roosevelt began by emphasizing that that war was a shared endeavor in which the United States was simply one participant: "This Nation in the past two years has become an active partner in the world's greatest war against human slavery."4 The war was in the process of being won. "But I do not think that any of us Americans can be content with mere survival."5 Hence "the one supreme objective for the future" -the objective for all nations-was captured "in one word: Security."6 Roosevelt argued that the term "means not only physical security which provides safety from attacks by aggressors," but includes as well "economic security, social security, moral security."7 Roosevelt insisted that "essential to peace is a decent standard of living for all individual men and women and children in all Nations. Freedom from fear is eternally linked with freedom from want."8 Moving to domestic affairs, Roosevelt emphasized the need to bring "security" of all kinds to America's citizens. He argued for "[a] realistic tax law-which will tax all unreasonable profits, both individual and corporate, and reduce the ultimate cost of the war to our sons and daughters."9 The nation "cannot be content, no matter how high that 2. For the full version of the address, see President Franklin D. Roosevelt, State of the Union Address (Jan. 11, 1944), in 13 THE PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D. ROOSEVELT 32-42 (Samuel 1. Rosenman ed., Harper & Bros. 1950) [hereinafter Roosevelt, State of the Union Address]. 3. See Cass R. Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421, 423 (1987) (quoting Roosevelt's "Second Bill of Rights"); see generally SUNSTEIN, supra note 1 (recovering and reemphasizing Roosevelt's Second Bill of Rights). 4. 5. 6. 7. 8. 9. Roosevelt, State of the Union Address.
Service Professor of Jurisprudence, Law School and Department of Political Science, University of Chicago; A.B., Harvard University, 1975; J.D., Harvard Law School, 1978. Law Clerk, Justice Thurgood Marshall, U.S. Supreme Court, 1979-80 . •• Austin B. Fletcher Professor of Law, Boston University School of Law; B.A., Northwestern University, 1974; J.D., Harvard Law School, 1977. 1. Portions of the analysis in this section have been adapted from the Author's recent book, CASS R. SUNSTEIN, THE SECOND BILL OF RIGHTS: FDR'S
UNFINISHED REVOLUTION AND WHY WE NEED IT
MORE THAN EVER (2004)
Ultimate victory was no longer in serious doubt. The real question was the nature of the peace. At noon, America's optimistic, aging, self-assured, wheelchair-bound president, Franklin Delano Roosevelt, delivered his State of the Union Address to Congress.2 His speech was not elegant. It was messy, sprawling, unruly, a bit of a pastiche, and not at all literary. It was the opposite of Lincoln's tight, poetic Gettysburg Address. But because of what it said, this forgotten address, proposing a "Second Bill of Rights," has a strong claim to being the greatest speech of the twentieth century.3 Roosevelt began by emphasizing that that war was a shared endeavor in which the United States was simply one participant: "This Nation in the past two years has become an active partner in the world's greatest war against human slavery."4 The war was in the process of being won. "But I do not think that any of us Americans can be content with mere survival."5 Hence "the one supreme objective for the future" -the objective for all nations-was captured "in one word: Security."6 Roosevelt argued that the term "means not only physical security which provides safety from attacks by aggressors," but includes as well "economic security, social security, moral security."7 Roosevelt insisted that "essential to peace is a decent standard of living for all individual men and women and children in all Nations. Freedom from fear is eternally linked with freedom from want."8 Moving to domestic affairs, Roosevelt emphasized the need to bring "security" of all kinds to America's citizens. He argued for "[a] realistic tax law-which will tax all unreasonable profits, both individual and corporate, and reduce the ultimate cost of the war to our sons and daughters."9 The nation "cannot be content, no matter how high that 2. For the full version of the address, see President Franklin D. Roosevelt, State of the Union Address (Jan. 11, 1944), in 13 THE PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D. ROOSEVELT 32-42 (Samuel 1. Rosenman ed., Harper & Bros. 1950) [hereinafter Roosevelt, State of the Union Address]. 3. See Cass R. Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421, 423 (1987) (quoting Roosevelt's "Second Bill of Rights"); see generally SUNSTEIN, supra note 1 (recovering and reemphasizing Roosevelt's Second Bill of Rights). 4. 5. 6. 7. 8. 9. Roosevelt, State of the Union Address.
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